International law, Sixth edition
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International Law MALCOLM N. SHAW
particular case. 277 The issue of the content of such a standard has often been described in terms of the concept of denial of justice. 278 In effect, that concept refers to the improper administration of civil and criminal justice as regards an alien. 279 It would include the failure to apprehend and prosecute those wrongfully causing injury to an alien, as in the Janes claim, 280 where an American citizen was killed in Mexico. The identity of the murderer was known, but no action had been taken for eight years. The widow was awarded $12,000 in compensation for the non-apprehension and non-punishment of the murderer. It would also include unreasonably long detention and harsh and unlawful treatment in prison. 281 A progressive attempt to resolve the divide between the national and international standard proponents was put forward by Garcia-Amador in a report on international responsibility to the International Law Com- mission in 1956. He argued that the two approaches were now synthesised in the concept of the international recognition of the essential rights of man. 282 He formulated two principles: first, that aliens had to enjoy the same rights and guarantees as enjoyed by nationals, which should not in any case be less than the fundamental human rights recognised and de- fined in international instruments; secondly, international responsibility would only be engaged if internationally recognised fundamental human rights were affected. 283 This approach did not prove attractive to the ILC at that time in the light of a number of problems. However, human rights 276 M. S. McDougal et al., Studies in World Public Order, New Haven, 1960, p. 869. 277 See Lillich, ‘Duties’, p. 350. 278 See e.g. A. V. Freeman, The International Responsibility of States for Denial of Justice, London, 1938. 279 See AMCO v. Indonesia (Merits) 89 ILR, pp. 405, 451. 280 4 RIAA, p. 82 (1926); 3 AD, p. 218. 281 See e.g. the Roberts claim, 4 RIAA, p. 77 (1926); 3 AD, p. 227 and the Quintanilla claim, 4 RIAA, p. 101 (1926); 3 AD, p. 224. 282 Yearbook of the ILC, 1956, vol. II, pp. 173, 199–203. 283 Yearbook of the ILC, 1957, vol. II, pp. 104, 112–13. 826 i n t e r nat i o na l l aw law has developed considerably in recent years 284 and can now be regarded as establishing certain minimum standards of state behaviour with regard to civil and political rights. It is noticeable, for example, that the relevant instruments do not refer to nationals and aliens specifically, but to all individuals within the territory and subject to the jurisdiction of the state without discrimination. 285 One should also note the special efforts being made to deal with non-nationals, in particular the UN Declaration on the Human Rights of Individuals who are not Nationals of the Country in which they Live, 286 and the continuing concern with regard to migrant workers. 287 Some differences as regards the relative rights and obligations of na- tionals and aliens are, of course, inevitable. Non-nationals do not have political rights and may be banned from employment in certain areas (e.g. the diplomatic corps), although they remain subject to the local law. It is also unquestioned that a state may legitimately refuse to admit aliens, or may accept them subject to certain conditions being fulfilled. Whether a state may expel aliens with equal facility is more open to doubt. A number of cases assert that states must give convincing reasons for expelling an alien. In, for example, the Boffolo case, 288 which concerned an Italian expelled from Venezuela, it was held that states possess a gen- eral right of expulsion, but it could only be resorted to in extreme cir- cumstances and accomplished in a manner least injurious to the person affected. In addition, the reasons for the expulsion must be stated before an international tribunal when the occasion demanded. Many munici- pal systems provide that the authorities of a country may deport aliens without reasons having to be stated. The position under customary in- ternational law is therefore somewhat confused. As far as treaty law is concerned, article 13 of the International Covenant on Civil and Political Rights stipulates that an alien lawfully in the territory of a state party to the Convention 284 See above, chapters 6 and 7. 285 See e.g. article 2 of the International Covenant on Civil and Political Rights, 1966 and article 1 of the European Convention on Human Rights, 1950. 286 General Assembly resolution 40/144. See also E/CN.4/Sub.2/392 (1977) and R. B. Lillich and S. Neff, ‘The Treatment of Aliens and International Human Rights Norms’, 21 German YIL, 1978, p. 97. 287 See further above, chapter 6, p. 333. 288 10 RIAA, p. 528 (1903). See also Dr Breger’s case, Whiteman, Digest, vol. VIII, p. 861; R. Plender, International Migration Law, 2nd edn, Dordrecht, 1988, and G. Goodwin-Gill, International Law and the Movement of Persons Between States, Oxford, 1978. s tat e r e s p o n s i b i l i t y 827 may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by and be represented for the purpose before, the competent authority. Article 3 of the European Convention on Establishment, 1956, provides that nationals of other contracting states lawfully residing in the territory may be expelled only if they endanger national security or offend against public order or morality, and Article 4 of the Fourth Protocol (1963) of the European Convention on Human Rights declares that ‘collective ex- pulsion of aliens is prohibited’. 289 The burden of proving the wrongfulness of the expelling state’s action falls upon the claimant alleging expulsion and the relevant rules would also apply where, even though there is no di- rect law or regulation forcing the alien to leave, his continued presence in that state is made impossible because of conditions generated by wrongful acts of the state or attributable to it. 290 Where states have expelled aliens, international law requires their national state to admit them. 291 Download 7,77 Mb. Do'stlaringiz bilan baham: |
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